2022 P Cr (PLP)

SHEHRAM SARWAR CH., J.

Abid Hussain (appellant) was tried by the learned Addl. Sessions Judge, Chichawatni District Sahiwal in case FIR No.164 dated 15.5.2016, offence under sections 302, 382 and 411, P.P.C., registered at Police Station Shah Kot District Sahiwal for the murder of Saleem Bibi (deceased) sister of complainant. Vide judgment dated 22.12.2016 passed by the learned trial court, the appellant has been convicted under section 302(b), P.P.C. and sentenced to death, with compensation of Rs.2,00,000/- (rupees two lac only) under section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.05 of 2017 for confirmation or otherwise of Abid Hussain appellant's sentence of death, as required under section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Ex.PB) registered on the statement (Exh.PG) of Sher Muhammad, complainant (PW.6) is that he established a bheni in his land where he was residing with his sister namely Saleem Bibi, who had cattle and used to sell milk for earning her livelihood. Abid Hussain (appellant) used to purchase milk from sister of complainant and the amount of milk of one month was outstanding towards Abid Hussain. She visited the house of appellant twice and demanded the outstanding amount from him but he lingered on to pay the same. The sister of the complainant told him that Abid Hussain is not paying the outstanding amount. On the fateful evening; Saleem Bibi went to the house of appellant to take amount of milk but she did not return back. The complainant got worried and he along with Pervaiz and Zakir Hussain started her search on motorcycle. At about 10.00 p.m. when they reached Tibba in the land of Abdul Ghafoor, they saw in the headlight of motorcycle that a man had laid down a lady and cutting her throat with chhurri. As soon as they reached near them, Abid Hussain appellant on seeing them decamped from the spot while brandishing chhurri and the complainant party found the dead body of Saleem Bibi smeared with blood, whose jugular vein was cut. Motive behind the occurrence as alleged in the FIR was that the appellant had grudge of demanding amount of milk and visiting his house oftenly by the deceased. The appellant also took away three gold ear rings and two nose rings of the deceased.

3. We have heard learned counsel for the parties as well as the learned Addl. Prosecutor General for the State and gone through the record with their able assistance.

4. This tragic incident wherein Mst. Saleem Bibi (deceased) sister of complainant lost her life, as per prosecution, took place on the night of 14.05.2016 at about 10.00 p.m. in the area of Chak No.27/14-L situated within the territorial limits of Police Station Shah Kot District Sahiwal. The distance between the place of occurrence and the police station is about eight miles. The matter was reported to the police through statement (Ex.PG) of Sher Muhammad, complainant (PW.6) on the same night at 11.45 p.m. and formal FIR (Ex.PB) was got registered at 12.20 a.m. on 15.05.2016. However, the postmortem examination of the dead body of deceased was conducted on the next day at 4.00 p.m., i.e. after about eighteen hours of the incident and it was stated by the Woman Medical Officer (PW.4) in her cross-examination that as soon as she received police papers, she conducted the postmortem examination of the deceased, without any delay on her part. It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Reliance is placed on case law titled as "Irshad Ahmed v. The State" (2011 SCMR 1190) and "Nazeer Ahmed v. The State" (2016 SCMR 1628).

5. The ocular account in this case has been furnished before the learned trial court by Sher Muhammad, complainant (PW.6) and Zakir Hussain (PW.7), who were closely related to the deceased being her brother and maternal cousin respectively and were chance witnesses because they were neither residents of the place of occurrence nor have any place of business over there. Both the eye-witnesses were residents of the same Chak i.e. 27/14-L but as stated by the complainant in cross-examination, the place of occurrence was situated at a distance of one kilometer. As per complainant, the place of occurrence was situated on the baseline, which was deserted (sunsaan) and zigzag where robbery and dacoity occurrences usually took place. The eye-witnesses had statedly seen the occurrence when they were in search of the deceased and we found it to be quite strange that if the appellant had to murder the deceased, then he did not have to wait for arrival of the said witnesses for cutting throat of the deceased. It is also noticeable that despite their claimed presence at the scene of crime at relevant time, the said eye-witnesses had not tried to stop or catch hold of the appellant who was not armed with any firearm to ward the said witnesses off or to keep them away. Before the learned trial court, the eye-witnesses have utterly failed to establish their presence on the place of occurrence at relevant time. It is in this context that the testimony of a chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. The testimony of a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at the crime spot are put forth, when the occurrence took place otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. Reliance may be placed on the case law reported as "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) and "Muhammad Javed v. The State" (2016 SCMR 2021). Under the circumstances, we are of the view that it was an unwitnessed occurrence and the eye-witnesses were not present on the spot.

6. Motive behind the occurrence as alleged in the FIR and brought before the learned trial court was that Abid Hussain (appellant) used, to purchase milk from Mst. Saleem Bibi sister of complainant and the amount of milk of one month was outstanding towards him. She oftenly visited the house of appellant and demanded the outstanding amount, which offended the appellant. No detail of motive incident as to how much amount was outstanding against the appellant and in whose presence she demanded the amount or visited the house of appellant, has been brought on record. We have also observed that no independent witness qua motive was produced during the course of investigation or brought in the witness box at trial. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.

7. So far as the alleged recovery of Chhurri (P.4) at the instance of appellant is concerned, the same is inconsequential for the reason that the occurrence took place on 14.05.2016, Chhurri was got recovered by the appellant on 03.06.2016, which was received in the office of Punjab Forensic Science Agency on 10.06.2016, therefore, it was unlikely that the blood on the Chhurri would not disintegrate during the above mentioned period. Reliance is placed on the case law reported as "Muhammad Jamil v. Muhammad Akram and others" (2009 SCMR 120).

8. As far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another v. The State" (1995 SCMR 599).

9. So far as the defence plea taken by the appellant in his statement under section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.

10. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be placed on the case law reported as "Muhammad Akram v. The State" (2009 SCMR 230).

11. For the foregoing reasons, Criminal Appeal No.459-J of 2018 filed by Abid Hussain (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 22.12.2016 passed by the learned Addl. Sessions Judge, Chichawatni District Sahiwal are set aside and he is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

12. Murder Reference No.05 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Abid Hussain (convict) is NOT CONFIRMED. JK/A-99/L Appeal allowed.